The Challenge of Hate Crime in South Africa

The Challenge of Hate
Crime in South Africa

A Panel Discussion with
Marilize Ackerman, Dawie Nel, Hanlie Van Wyk

Chair: Iole Matthews

WHAT IS HATE CRIME?

¡  A criminal act committed against people, property,
or organisations that is motivated in whole or part by
prejudice because of the group to which the victim
belongs or identifies with (i.e. LGBTI organisation,
foreign nationals or mosque).

¡  Perpetrators seek to demean and dehumanise
victims – considered different based on actual or
perceived race, ethnicity, gender, age, sexual
orientation, disability, health status, nationality, social
origin, religious convictions, culture, language and/
or other characteristic.

¡  Hate crime (i.e. homophobic murder) v Hate
incident (i.e. racist hate speech)

WHY SEPARATE
CRIME CATEGORY?

Perpetrator prejudice
differentiates hate crime from
other crimes

Identity crime: Directed at the
identity of the victim and
motivated by hatred or specific
targeting not of the individual, but
of the group to which they belong

Message crime: Message
conveyed by perpetrator impacts
beyond direct victim/s, to others
in targeted group

WHY CONSIDERED PRIORITY
CRIME?

¡  Internationally considered a priority crime, not on basis of
prevalence, but rather severity of emotional & psychological
impact beyond individual victim, extending to group to which
they belong or are perceived to belong, and to the broader
community or society at large

¡  "Hate crimes do more than threaten the safety and welfare of all citizens. They
inflict on victims incalculable physical and emotional damage and tear at the
very fabric of free society. Crimes motivated by invidious hatred toward
particular groups not only harm individual victims but send a powerful message
of intolerance and discrimination to all members of the group to which the
victim belongs. Hate crimes can and do intimidate and disrupt entire
communities and vitiate the civility that is essential to healthy democratic
processes.”

(Hate Crimes Act of New York State)



Xenophobia as a
category of crime

Presented by:
Marilize Ackermann, Scalabrini

Centre of Cape Town























Easy targets

Ø Foreigners are easy targets:

-  Limited access to information;

-  Presently in the Western Cape, asylum seekers
can not open bank accounts since they are
dependent on DHA to verify authenticity of
documentation – it is well known that they carry
and keep cash for this reason

-  Language barriers to access to police services.
Insufficient number of translators in magistrates
courts reported to be problematic nationwide





Ø Example: The CTRRO is the office of DHA with the highest
incidence of corruption

Ø External ‘agents’ target foreigners outside the CTRRO

Ø Services at the CTRRO are erratic

Ø Since June 2012, the CTRRO has not accepted new asylum claims,
despite a court order from the High Court and an agreement by
the State Attorney obo DHA, pending the appeal to the SCA:
Effectively disregarding the rule of law.

Ø The UNHCR declared xenophobia to be among the greatest
contemporary challenges to the protection of refugees and other
forced migrants



b) Reaction to xenophobic violence/crime

Ø  Interviews conducted indicate that many asylum seekers and refugees
are wary of the police.

Ø  It is perceived that police would not investigate cases properly, due to the
foreigner’s immigration status. Some persons interviewed subsequent to a
perceived xenophobic assault, indicated that they would not report a
case to the police, if it were to happen again.

Ø  Perpetrators of hate crime are likely to be encouraged by the perception

Ø  Access to justice: There appears to be a lack of interest to hold
perpetrators of xenophobic violence accountable. The actual and
perceived impunity with which perpetrators of xenophobic violence are
seen to act can only continue to encourage the ill-intentioned to attack
foreigners. Low conviction rate following the 2008 attacks



Ø  According to the African Peer Review Mechanism, South African government's
handling of xenophobia received the lowest possible rating in 2011

Ø  No active approach by Government to the prevention of xenophobic violence
Ø  Inter-Ministerial Committee established in 2010 to deal with threats of violence

against foreign nationals. Although an active body on other levels, the last time
it addressed the issue of xenophobia was in 2010

Ø  Immigration Act allows for establishment of a Counter-Xenophobia Unit by DHA:
No reports of activities could be found

Ø  Fuelling xenophobic sentiment for example: Counsel for DHA during recent
court case on trading licences stated:

‘refugees are less than immigrants’

Ø Inaccuracies in the media fuels xenophobia: In recent
publication it was inaccurately stated that babies born to
foreigners, automatically attain South African citizenship; And
reports that foreigners ‘steal women’ which implies non
consent?

Ø Draft legislation on Hate Crimes is pending with the DoJ for
several years

Ø Non-response is often attributed to the endemic nature of
violent crime in South Africa and the fact that there is no
differentiation within the criminal justice system, between
general crime and prejudice-motivated crime.

Ø Publicly condemn all threats or outbreaks of xenophobic
violence

Ø Data collection: Strengthen the ability to detect and respond to
threats or outbreaks of xenophobic violence

Ø Strengthen access to justice for victims of xenophobic violence

Ø HCWG recommends both introducing a new category of
offences for hate crimes as well as making use of existing
provisions for enhanced sentencing by adopting hate crimes
legislation

Ø Alternatively - Criminal Law Amendment Act of 1997 provides for
minimum sentencing for particular categories of crimes. This is a
possible mechanism that could be adapted following specific
hate crimes legislation to provide for minimum sentencing for
hate crimes in terms hereof

Ø Improve accountability of government employees who make
threats or deny access to services based on discriminatory
attitude

References
Ø  Hate Crimes Working Group (2010)Recommendations on hate

and bias crime legislation
Ø  OSCE (2009) Hate crimes laws, practical guide
Ø  Kerry Williams (2010) Ex parte Cormsa
Ø  DHA Parliamentary Briefing, August 2013
Ø  Landau (2011) Exorcising the demons within, xenophobia,

violence and statecraft in contemporary South Africa
Ø  Prof Juan Nel, Khonzi Mbatha (UNISA) & Ms Hanlie van Wyk
Ø  ISS, Memo for the Department of Justice and Constitutional

Development on Hate Crimes in South Africa

Introduction

Ø The Scalabrini Centre of Cape Town is a non-
profit organisation, advocating for the equal
treatment and social integration of asylum
seekers, refugees and migrants, within South
Africa and particularly, the Western Cape

Ø Scalabrini is a member of the Steering
Committee of the Hate Crimes Working Group

Definition of xenophobia

¡  Xenophobia is defined as: -

‘an unreasonable fear, distrust or hatred of strangers,
foreigners or anything that is perceived as foreign or different.’

¡  Internationally, certain forms of conduct, such as public
incitement, to violence or hatred directed against a group of
persons or a member of such a group defined on the basis of
race, colour, descent, religion or belief, or national or ethnic
origin;

¡  public dissemination or distribution of tracts, pictures or other
material containing expressions of racism and xenophobia;

.

Xenophobia as a category of
crime: hate crime

¡  Countries such as the US, UK and EU legislation,
crimes which are committed for a racist or
xenophobic purpose, are punishable as a
substantive criminal offence.

¡  In South Africa, hate crime is not a recognized
crime category.

¡  International law does not define xenophobia
per se, but it can be categorized as a form of
hate crime.

Definition of a hate crime

¡  A hate crime is:

1)  An act which qualifies as a criminal offence
under existing common- or statutory law;

2)  Where the victim was selected because of a
characteristic inherent to his/her identity,
which characteristic is associated with a
particular social group.

¡  Therefore, the perpetrator was motivated by a
form of bias, discrimination or hatred in the
selection of the victim.

South Africa: Legal framework

International Law

Ø  Convention on the Elimination of all forms of Racial
Discrimination, article 4:

4(a) State Parties...shall declare an offence
punishable by law all dissemination of ideas based
on racial superiority or hatred, incitement to racial
discrimination, as well as all acts of violence or
incitement to such act against any race or group of
persons of another colour or ethnic origin..’

Ø  South Africa has no legislation in line with this obligation.

Ø  The South African Human Rights Commission is mandated to
receive complaints about discriminatory practices or
behaviour.

South African legal framework

Constitution Chapter 2
Ø Section 9(3) The state may not unfairly discriminate

directly or indirectly against anyone on one or more
grounds, including race, gender, sex, pregnancy,
marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience,
belief, culture, language and birth.

Ø Larbi-Odam: Constitutional Court includes
citizenship as a grounds for discrimination
[Larbi-Odam and others v MEC for Education
(North-West Province) and another CCT 2/97]

South African legal
framework

Domestic Law

Ø Xenophobia crime/hate crime is a confluence of
human rights law and criminal law

Ø Criminal law: Neither statutory law or common
law defines hate crimes or xenophobia

Ø  Common law allows for increased penalties if
prejudice is established as a motive, however,
whether this is implemented depends on whether
it is raised as an issue during prosecution , thus
not guaranteed or systematic

South African legal
framework

Ø Criminal cases: trial phase and sentencing phase

Ø Racial hatred has been considered a factor in
sentencing in a number of cases by South African
courts during sentencing

Ø Civil law: Promotion of Equality and Prevention of
Unfair Discrimination Act (PEPUDA)

‘Section 28 (1) If it is proved in the prosecution of
any offence that unfair discrimination on the
grounds of race, gender or disability played a part
in the commission of the offence, this must be
regarded as n aggravating circumstance for
purposes of sentence.’

South African legal
framework

¡  S28 of PEPUDA confirms common law position
that the court has the discretion to consider
aggravating circumstances during sentencing

¡  S28 does not include all constitutional grounds for
discrimination

¡  Equality courts are similar to civil courts, but may
make sentences with punitive aspects, for eg.
Awarding damages, ordering the payment of a
fine, etc.

Legal models for prosecuting
hate crimes

Ø Hostility model

Prove hatred or hostility: Very difficult since it is
largely subjective or based on perception of victim/
social group
Ø Discriminatory model

-  Prove characteristic of identity as motivating factor.

-  Discriminatory model is more flexible, it allows for
criminal intent too

-  It could include mistaken perception, for eg.
Backlash following 11 September 2001 attacks
against Indians and persons from Latin America

Reasons for xenophobia

Ø  Socio-economic pressure: Competition for
employment, housing, public service delivery.
Demonstrations often turn violent e.g

-  Kraaifontein June 2013: Demonstration about
service delivery

-  Fochville Aug 2013: Demonstration about housing

-  Thokoza Aug 2013: COSATU gathering

Reasons for xenophobia

Ø In the Union of Refugee Women-case, the
Constitutional Court declared refugees a
vulnerable grouping of persons

[Union of Refugee Women and Others v Director, Private
Security Industry Regulatory Authority and Others (CCT 39/06)
[2006] ZACC 23; 2007 (4) BCLR 339 (CC) ; (2007) 28 ILJ 537
(CC) (12 December 2006)

Ø Research indicate that foreigners are in general
more likely to be victims of extortion, harassment
by the police and public service providers, verbal
and physical abuse.

Reasons for xenophobia

Ø  Foreigners perceived to be responsible for crime. Certain
nationalities are subject to stereotyping and profiling by
the media.

-  There are no statistics to support perceptions of
stereotypes.

-  The ratio of foreigners to citizens, does not support this
either.

Ø  Foreigners are easy targets: Presently in the Western
Cape, asylum seekers can not open bank accounts due
to inability to verify authenticity of documentation by
RRO; language barriers to police services and other public
services.

Ø  Insufficient number of translators in magistrates courts
reported to be problematic nationwide

Reasons for xenophobia

Ø Isolation from vigilantism:

Particularly in the Western Cape, the lack of
appropriate mechanisms of conflict resolution,
communities often turn to vigilantism. Albeit
outside the law, foreigners’ exclusion effectively
isolates them further

Institutionalized discrimination

Ø Institutionalized discrimination not only fuels xenophobic
attitude amongst members of public, but public officials, ex
officio, condones Government’s position towards foreigners.

Ø Denial of public services to foreigners, marginalizes such groups
and creates opportunity for corruption – factors which further
encourage xenophobic sentiment

Ø Example: Police stations in Cape Town refuse to certify asylum-
and refugee permits; refuse asylum seekers from deposing to
affidavits

Institutionalized discrimination

Ø Example: The CTRRO is the office of DHA with the highest
incidence of corruption [Presentation by the DHA to the Portfolio
Committee, Aug 2013]

Ø Services at the CTRRO are erratic

Ø Since June 2012, the CTRRO has not accepted new asylum claims,
despite a court order from the High Court [Scalabrini Centre v The
Minister of Home Affairs & Others]

Ø Since October 2012, the CTRRO has not extended asylum seeker-
or refugee permits, if these were initially issued at another RRO
than Cape Town

Ø Immigration violation by asylum seekers and refugees: Access to
justice system is not guaranteed, nor are standard procedures in
place at the CTRRO. Asylum seekers and refugees are left without
recourse and legal certainty.

Institutionalized discrimination

Ø  External ‘agents’ are targeting foreigners outside the
CTRRO. [DHA briefing to Portfolio Committee, Aug 2013]

Ø  Surveys have indicated that many foreigners are wary of
the police. It is perceived that police does not react
appropriately in cases brought by foreigners. Perpetrators
of hate crime are likely to be encouraged by this
perception.

Ø  Access to justice: There appears to be a lack of interest to
hold perpetrators of xenophobic violence accountable.
The actual and perceived impunity with which
perpetrators of xenophobic violence are seen to act can
only continue to encourage the ill-intentioned to attack
foreigners. Low conviction rate following the 2008 attacks

Prejudicial effects of holding
no/expired permits issued in
terms of the Refugees Act

-  The UNHCR declared xenophobia to be among the greatest
contemporary challenges to the protection of refugees and other
forced migrants

-  The limitation of services, leads to a large number of
undocumented persons or persons holding expired permits. The
prejudicial effects hereof are numerous:

-  Employment issues

-  Access to services

-  Vulnerability to arrest, detention and unlawful deportation
(contrary to the principle of non-refoulement)

Government’s response to
xenophobia

Ø In general, Government avoids the topic, and
especially avoids labelling any incident as
xenophobic. Prefers to declare such acts to be
driven by general criminality.

Ø Official policy is towards integration of foreigners
into South Africa: No encampments;
constitutional right of freedom of movement;
HOWEVER, a passive attitude is taken towards
violence or institutionalized discrimination on the
basis of nationality.

Ø Passive approach strengthens perception that
that xenophobia is tolerated and acceptable

Government’s response to
xenophobia

Ø According to the African Peer Review Mechanism, South African
government's handling of xenophobia received the lowest
possible rating in 2011

Ø No active approach by Government to the prevention of
xenophobic violence

Ø Inter-Ministerial Committee established in 2010 to deal with
threats of violence against foreign nationals. Although still active,
the last time it addressed xenophobia was in 2010.

Ø Immigration Act allows for establishment of a Counter-
Xenophobia Unit by DHA: No reports of activities could be found.

Ø Fuelling xenophobic sentiment for example: Counsel for DHA
during recent court case on trading licences stated:

‘refugees are less than immigrants’

Government’s response to
xenophobia

Ø Inaccuracies in the media fuels xenophobia: In
recent publication it was inaccurately stated that
babies born to foreigners, automatically attain
South African citizenship.

Ø Draft legislation on Hate Crimes is pending with
the DoJ for several years

Ø Non-response is often attributed to the endemic
nature of violent crime in South Africa and the
fact that there is no differentiation within the
criminal justice system, between general crime
and prejudice-motivated crime.